Legal scholar and civil rights advocate Erwin Chemerinsky
says there is. “There has to be a right to education in the Constitution,”
he declares, “and equal protection is a Constitutional imperative.”

But according to Chemerinsky, this right has been
fundamentally undermined by the Supreme Court. With the retirement of
Justice David Souter, and the posible retirement in the next few years
of Justices Ruth Bader Ginsburg and John Paul Stevens, the role of the
court in defending the right to education will be thrust into the national
spotlight. What role might their replacements play in guaranteeing education
to American children, and reversing the conservative momentum of the last
three decades?

Chemerinsky believes that without popular pressure
and new judicial appointments that reverse the present course, the right
to education will be further constricted, and even lost. Education itself
in the United States is in greater danger than ever because of the steady
“deconstitutionalization” of this right, he asserts. “The
Supreme Court has followed a steady course over the last 35 years of undermining
the right to education.”

Chemerinsky has a long history as a civil rights
advocate, which turned his appointment in 2007 as the founding dean of
the University of California, Irvine School of Law into a fight. Although
the university regents approved him, UCI Chancellor Michael V. Drake,
who originally hired him, withdrew the invitation saying Chemerinsky’s
views were "polarizing."

While Drake claimed that he had not received any
pressure to withdraw the nomination, media reports unearthed efforts by
conservative California Supreme Court Chief Justice Ronald George, Los
Angeles Supervisor Mike Antonovich and a group of Orange County Republicans
to kill the appointment. Although Chemerinsky is of one of the country’s
most respected constitutional scholars, they cited his opposition to the
death penalty, and his support for civil rights. In the end, his reputation
and his defense by legal authorities nationwide moved UCI to restore the
appointment.

In speaking to a meeting of California teachers
earlier this year, Chemerinsky gave ample indication of the reasons why
some of the most right wing elements in California politics might not
want to see him head one of its most prestigious law schools. He recalled
the case of Rodriguez vs. the San Antonio Board of Education, decided
in 1973. In that case, he explained, the plaintiffs proved a disparity
in funding of 4 or 5 to one, between poor Latino communities and more
affluent Anglo ones in that city. In a 5-4 decision, however, the Supreme
Court held, in a decision written by Justice Louis Powell, that there
is no right to education in the U.S. Constitution. Wealth disparities,
therefore, were permissible, even under the equal protection language
of the 14th Amendment.

“Many expressed surprise,” he noted,
“since states require the education of minors in their own Constitutions.
But Powell ruled there was no right to this on a Federal level.”
Other similar decisions followed. The funding disparities noted in Texas,
he says, are no different from those in California districts.

Chemerinsky connected this philosophy to the Supreme
Court’s decision upholding the legality of school vouchers. “They
have one purpose only,” he asserted. “That is to take funds
out of the public school system and transfer them to parochial schools.
In a 1982 decision, the court found that in Cleveland, where 95% of voucher
money went to religious parochial schools, the system did not amount to
state support of religious instruction. “Fortunately,” he
said, “the voucher system hasn’t caught on, but the court
has ruled it legal.”

In this legal environment it’s no surprise,
therefore, that he views political action as necessary to the preservation
and extension of civil rights. In fact, while he paints a dark picture
of the legal panorama, he sees the main possibility for change arising
from the election of the new administration of President Barack Obama.
A window for change has opened, but Chemerinsky warns it will not stay
open long. He cites the early years of the Clinton administration, which
delayed on the appointment of new judges. After two years in office, and
the loss of Congress to the Republicans in 1994, that administration began
appointing judges as conservative as those appointed by Clinton’s
predecessor. The appointments were justified as political necessity –
only those would “slide through.”

Chemerinsky is a legal authority on the impact
of race on education, and says that political action in support of desegregation
has been integrally connected with extending the right to education. Some
people believe, he says, that the watershed Brown vs. Board of Education
immediately desegregated schools, thus ensuring the right to equal education
for all students. In reality, while the Supreme Court held that segregation,
the system of “separate but equal,” was unconstitutional in
1954, for the next ten years there was no movement to comply with the
decision. It was only after Title 6 the Civil Rights Act threatened to
withhold funds from schools that didn’t desegregate that compliance
began. “From 1964 to 1988 schools became less racially segregated
as a result,” he recalled. “But since 1988, they’ve
become more segregated, and at an accelerating rate.”

He traced the change to a 1974 case that prohibited
the transfer of students between different school districts in order to
desegregate schools. “In Chicago, where I grew up, the schools are
now 95% Black and Latino, yet just over the border, they’re 95%
white, and this is true in almost every metropolitan area. Yet the court
said there’s no remedy for this.” This was followed by other
decisions in the early 1990s, holding that once desegregation orders had
been in effect for a brief time, those orders should end, whether or not
the effect of doing so would lead to further resegregation. Then even
voluntary desegregation plans that used race as one factor in assigning
students were held unconstitutional by further 5-to-4 Supreme Court rulings.

In California, Chemerinsky described a similar
impact from Proposition 209, which he campaigned unsuccessfully to defeat.
He cites the disparity in racial diversity between private law schools,
which are not constrained by Proposition 209’s prohibition on affirmative
action, and public law schools, which are. “Five years afterwards,
the Stanford Law School had 9.5% African American students, and USC 11%.
UC Berkeley’s Boalt Law School had 3% and UCLA 2%. One student told
me that in her three years at Boalt she never had a Black student in her
class. The Supreme Court” he warned, “is likely soon to constitutionalize
Prop 209.”

Even the erosion of academic freedom, Chemerinsky
asserts, is connected to court decisions undermining the right to education
and desegregation. He cited the Supreme Court’s decision in the
Garcetti case in Los Angeles, holding that public employees have no First
Amendment protection for speech on the job, even when they’re fired
for carrying out their responsibilities. The court has similarly eroded
the rights of students to free speech, he says. “How can you teach
students about the First Amendment if the people teaching them, and they
themselves as students, have no First Amendment rights?” he asks.